"[C]ritical to the sentencing process and appellate review is the need for the sentencing court to explain clearly why an aggravating or mitigating factor presented by the parties was found or rejected and how the factors were balanced to arrive at the sentence."
How later courts described this case
- "[C]ritical to the sentencing process and appellate review is the need for the sentencing court to explain clearly why an aggravating or mitigating factor presented by the parties was found or rejected and how the factors were balanced to arrive at the sentence."
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3502-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JIMMY GERMAN,
Defendant-Appellant.
_________________________
Argued September 16, 2025 – Decided November 13, 2025
Before Judges Susswein, Chase and Augostini.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 21-07-0407.
Samuel Carrigan, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Sellitti,
Public Defender, attorney; Samuel Carrigan, of counsel
and on the briefs).
Timothy Kerrigan, Chief Assistant Prosecutor, argued
the cause for respondent (Camelia M. Valdes, Passaic
County Prosecutor, attorney; Timothy Kerrigan, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Jimmy German appeals his jury trial convictions for four armed
robberies committed against separate victims on separate occasions over the
course of two days in January 2021. Defendant contends the court erred by
ruling inadmissible documents that defendant proffered at trial regarding his
intellectual and emotional challenges, including two Individualized Education
Plans (IEPs) and a neurological evaluation. These documents show the schools
he once attended classified him as having a learning disability and emotional
disturbance. Defendant also contends, for the first time on appeal, that the trial
court erred by not sua sponte reopening the pretrial Miranda1 hearing to account
for those records, which had not been presented at the pretrial suppression
hearing. Aside from appealing his convictions, defendant also challenges the
aggregate twenty-seven-year prison term the trial court imposed. After
reviewing the record in light of the governing legal principles, we affirm the
convictions and sentence.
I.
We discern the following facts and procedural history from the record.
The first of the four robberies was committed on January 29, 2021, at around
1
384 U.S. 436 (1966).
A-3502-22
2
5:00 a.m. The victim, victim one, was getting into his van when a black man
wearing a hoodie pointed a pistol at him and demanded money. The armed
assailant was accompanied by others. The group took victim one's two phones
and the cash in his wallet. The armed assailant struck victim one in the head
with the handgun while another person closed the van door on his foot. After
the group fled, victim one went to a nearby business and asked the employees
to call the police. This robbery was captured on surveillance video, which was
played at trial.
The second robbery occurred about an hour after the first robbery. The
victim, victim two, was walking to his car when three individuals wearing black
outfits and black ski masks approached. Two of them were brandishing guns.
They demanded that victim two hand over his belongings. He complied by
giving them his phone and wallet. This robbery was not captured on surveillance
video.
The third robbery occurred about an hour later around 7:00 a.m. The
victim, victim three, was in his van when three men wearing ski masks
approached. The assailants opened the van doors and "took everything that [he]
had on [him]" including a new lunchbox, his phone, $170 cash, his bank cards,
and his takeout meal from a nearby restaurant. Victim three did not see any
A-3502-22
3
weapons but testified that he was struck in his side with something harder than
a fist. The assailants left the scene in a car. This robbery was captured on
surveillance video, but the recording does not show the getaway car.
The fourth robbery was committed on January 31 at around 11:00 a.m.
The victim, victim four, was walking to his car when a 2015 or 2016 Nissan
Altima pulled up next to him. Two persons got out of the car with handguns
and took victim four's cell phone, cash, and wallet. Victim four asked for the
wallet back because it contained his license and social security card. Someone
in the group threw it on the ground before they drove away. Victim four returned
to his home and called his wife and the police. A neighbor witnessed the robbery
and took videos and pictures that show the vehicle's license plate.
Shortly after police received victim four's report and the neighbor's videos
and photos, an officer spotted the assailants' vehicle at a nearby gas station.
Several officers responded and ordered the occupants to exit the vehicle. Co -
defendant Alexander Sami was in the driver's seat, defendant was the front -seat
passenger, and then-juvenile S.J.2 was in the back seat. Sami was armed with
an airsoft gun. The car's glovebox contained a handgun. Victim four's cell
phone was found on the front passenger seat.
2
We use initials to identify the parties in accordance with R. 1:38-3(d).
A-3502-22
4
Paterson Police Department Detective Marcos Martinez and Detective
Sergeant Kelvin Matos questioned defendant at the police station. Sergeant
Matos is the brother of the first victim. The interrogation was electronically
recorded and a redacted version was played for the jury. The recording shows
that Detective Martinez read defendant his Miranda rights and asked if defendant
understood them. Defendant stated "yes" and signed the Miranda form.
After waiving his Miranda rights, defendant admitted that on January 31,
before he was arrested, he saw a man walking down the street and decided to
rob him. He acknowledged that he was sitting in the passenger seat of the car,
that there was a gun in the car, and that he knew the car was stolen because he
had stolen it. When asked about the first January 29 robbery, defendant stated
"you got the wrong person." With respect to the second and third January 29
robberies, defendant explained that he remembered taking a man's food and
eating it and selling the three phones he took.
On July 29, 2021, defendant and codefendant Sami were charged by
indictment with the following crimes: first degree carjacking, N.J.S.A. 2C:15-
2(a)(1) and N.J.S.A. 2C:2-6 (count one); third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(2) and N.J.S.A. 2C:2-6 (counts two, seven); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts
A-3502-22
5
three, nine, fourteen, nineteen, twenty-four); second-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b) (counts four, eleven, sixteen, twenty-one,
twenty-six); first-degree using a juvenile to commit a crime, N.J.S.A. 2C:24-9
(counts five, eight, thirteen, eighteen, twenty-three); first-degree robbery,
N.J.S.A. 2C:15-1(a)(1) and N.J.S.A. 2C:2-6 (counts six, twelve, seventeen,
twenty-two); fourth-degree possession of imitation firearm for an unlawful
purpose, N.J.S.A. 2C:39-4(e) (counts ten, fifteen, twenty, twenty-five); third-
degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count twenty-seven); and
fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(d)
(count twenty-eight).
On January 13, 2023, the trial court heard several pretrial motions,
including defendant's motion to suppress statements he made to police. At the
Miranda hearing, the State presented testimony from Martinez and introduced
the detective's report, defendant's signed Miranda waiver, and the electronic
recording of the stationhouse interrogation. Defense counsel did not call any
witnesses or present any evidence.
The trial court issued an oral opinion, concluding that defendant
knowingly, intelligently, and voluntarily waived his Miranda rights. The court
noted that "defendant claims that he did not knowingly, intelligently waive his
A-3502-22
6
rights, as the police did not specifically advise him of the exact charges prior to
questioning him," but found that "there is no question that defendant knew why
he was being questioned." After finding the State's witness, Officer Martinez,
credible, the court addressed the relevant factors, ruling:
[T]he [c]ourt finds that the defendant was
unquestionably advised prior to waiving his Miranda
rights that he was being charged, regardless of what he
did. The [c]ourt further finds that the defendant was
[nineteen] years old at the time of this interrogation,
that he was interrogated approximately three and a half
hours after his arrest. He was offered refreshments. He
was also offered to use the bathroom before the
interrogation began. The interrogation, itself, was
approximately [forty] minutes long. The police read
aloud the Miranda form to the defendant. They made
sure that he understood everything. The video, B-3,
shows that the defendant was able to review the waiver
portion himself prior to acknowledging. The fact that
the defendant started to speak, and the detectives told
him, wait, you have to sign this first. They repeatedly
told him, he did not have to talk to them; he was going
to be arrested and charged, regardless of whether he
gave a statement.
They repeatedly told him that he did not have to
sign it. So, the [c]ourt finds there is absolutely no
evidence to indicate that his will was overborn in any
way, shape or form. There is no evidence, whatsoever,
to show that he was forced, coerced, threatened in any
way. Based upon the totality of the circumstances, the
[c]ourt does not find that he was subject to physical
punishment or mental or physical exhaustion. So, the
[c]ourt does find that the State has met their burden and
shown by—beyond a reasonable doubt that Mr. German
A-3502-22
7
knowingly, intelligently and voluntarily waived his
rights.
A jury trial was convened in early February 2023 over the course of seven
non-consecutive days. At the close of the State's case, the court dismissed
counts five, eight, thirteen, eighteen, and twenty-three (using a juvenile to
commit a crime).
The jury found defendant guilty of all four counts of first-degree robbery
(counts six, twelve, seventeen, and twenty-two); one count of the lesser-included
disorderly persons offense of simple assault (amended count seven); one count
of second-degree unlawful possession of a weapon (count twenty-six); and one
count of unlawful taking of a means of conveyance (count twenty-eight).
On March 31, 2023, the trial court sentenced defendant to an aggregate
prison term of twenty-seven years, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Specifically, on counts six, twelve and seventeen (the
robberies that occurred on January 29), the court imposed three prison terms of
five years each. The court merged amended count seven (simple assault) with
count six. On count twenty-two (the robbery that occurred on January 31), the
court imposed a prison term of seventeen years. On count twenty-six (unlawful
possession of a weapon), the court imposed a prison term of seven years. On
count twenty-eight (unlawful taking of a means of conveyance), the court
A-3502-22
8
imposed a one-year prison term. The court ordered counts six, seventeen, and
twenty-two to run consecutively.
This appeal followed. Defendant raises the following contentions for our
consideration:
POINT I
IT WAS ERROR FOR THE COURT TO DENY
SUPPRESSION WITHOUT CONSIDERING THE
EXTENSIVE DOCUMENTATION OF
[DEFENDANT'S] INTELLECTUAL DISABILITIES,
REQUIRING REMAND FOR A NEW SUPPRESSION
HEARING.
POINT II
THE TRIAL COURT ERRED WHEN IT EXCLUDED
INFORMATION ABOUT DEFENDANT'S
INTELLECTUAL DISABILITIES FROM EVIDENCE
AT TRIAL.
POINT III
DEFENDANT'S [TWENTY-SEVEN-YEAR] NERA
SENTENCE, COMPRISING THREE CONSECUTIVE
SENTENCES, FOR HIS FIRST CONVICTIONS IS
EXCESSIVE.
Defendant raises the following additional contention in his counseled
reply-brief:
POINT I
WITHOUT CONSIDERING THE EVIDENCE OF
[DEFENDANT'S] INTELLECTUAL DISABILITIES,
A-3502-22
9
THE TRIAL COURT'S SUPPRESSION DECISION
DOES NOT ASSESS THE TOTALITY OF THE
CIRCUMSTANCES SURROUNDING THE
INTERROGATION.
Defendant raises the following additional contentions in a two-page self-
represented brief: 3
POINT I
THE STATE FAIL[ED] TO PROVE ALL ELEMENTS
OF ARMED ROBBERY FIRST DEGREE N.J.S.A.
2C[:]15-1(A)(1) [] [AS] NO VICTIM SUFFER[ED]
SERIOUS INJURIES OR THERE IS NO RECORD OF
SERIOUS BODILY INJURIES.
POINT II
THE STATE FAIL[ED] TO PROVE ALL ELEMENTS
OF UNLAWFUL POSSESSION OF A WEAPON
SECOND DEGREE N.J.S.A. 2C[:]39-5(B) MY
FINGERPRINTS WERE NOT ON THE GUN AND
THERE'S NO PROOF OF ACTUAL POSSESSION
ON VIDEO.
POINT III
THE LEAD DETECTIVE IN THE MIRANDA
INTERROGATION WAS [INVESTIGATING] HIS
BROTHER'S ROBBERY POSING A CONFLICT OF
INTEREST.
POINT IV
THE STATE FAIL[ED] TO PRESENT EVIDENCE
3
The brief consists of five bullet sentences.
A-3502-22
10
CAMERA FOOTAGE OF ROBBERY [VICTIM
TWO] UNDER THE INDICTMENT COUNT 12
WHICH FAILS TO PROVE ALL ELEMENTS OF
ARMED ROBBERY IN THE FIRST DEGREE
ACCORDING TO N.J.S.A. 2C:15-1(A)(1) [].
POINT V
THE STATE FAIL[ED] TO PROVE ALL ELEMENTS
OF SIMPLE ASSAULT-NEGLIGENTLY CAUSING
BODILY INJURY WITH A DEADLY WEAPON
THIRD DEGREE N.J.S.A. 2C:12-1(A) [] THERE'S
NO PROOF OF ME ACTUALLY CAUSING BODILY
[INJURY] TOWARDS [VICTIM ONE] AND
[VICTIM ONE] DID NOT POINT ME OUT IN A[N]
IDENTIFICATION PROCEDURE NOR
PHYSICALLY IN TRIAL AS THE SOLE
PERPETRATOR.
II.
We first address defendant's contention that the trial court erred by
excluding evidence concerning his intellectual disabilities. Specifically,
defendant at trial sought to admit a 2016 IEP, a 2018 IEP, a 2017 Pediatric
Neurological Evaluation, 4 and a November 2014 letter from the Social Security
4
The 2017 Evaluation was conducted on September 20, 2017, when defendant
was sixteen years old. That Evaluation acknowledges that defendant's schools
in Paterson and Garfield classified him "under the category of specific learning
disability and emotionally disturbed." The evaluator recommended that
defendant receive "ongoing intervention under [the] supervision of a pediatric
psychiatrist" and that he remain in special education.
A-3502-22
11
Administration. 5 The prosecutor objected to these documents on relevance
grounds. The trial court determined that neither the documents nor defendant's
testimony about them were relevant to the crimes charged and would not aid the
jury in making any factual determinations. The court further concluded that the
documents and any related testimony would confuse the jury.
We begin our analysis by acknowledging the legal principles governing
this appeal. As a general matter, we must "defer to a trial court's evidentiary
ruling absent an abuse of discretion." State v. Garcia, 245 N.J. 412, 430 (2021).
"Under that deferential standard, we review a trial court's evidentiary ruling only
for a 'clear error in judgment.'" State v. Medina, 242 N.J. 397, 412 (2020)
(quoting State v. Scott, 229 N.J. 469, 479 (2017)).
That said, it can hardly be disputed that "[a] defendant enjoys a
fundamental constitutional right to a fair trial, which necessarily includes the
right to present witnesses and evidence in [their] own defense." State v.
Jenewicz, 193 N.J. 440, 451-52 (2008). Importantly, however, "a defendant's
right to present a defense is not absolute." Ibid. "The accused does not have an
unfettered right to offer [evidence] that is incompetent, privileged, or otherwise
5
The letter, which was issued when defendant was thirteen years old, details
that he was receiving Supplemental Security Income payments.
A-3502-22
12
inadmissible under standard rules of evidence." Montana v. Egelhoff, 518 U.S.
37, 42 (1996) (alteration in original) (quoting Taylor v. Illinois, 484 U.S. 400,
410 (1988)).
The gravamen of defendant's argument is that the trial court denied him
the right to present his defense by preventing him from introducing evidence
about his intellectual disabilities. It bears emphasis, however, that defense
counsel explicitly acknowledged to the trial court that he was not pursuing a
diminished capacity defense. Counsel argued the documents were nonetheless
relevant, explaining:
[T]he purpose is to give [the jury] an overall picture of
the level of sophistication of [defendant]. . . . [P]art of
the difficulty for me was the family gave this stuff to
me relatively late[]. . . . [T]here's also no support for
the idea that I'm making it up, because we do have the
reports, there's an IEP from the school . . . a pediatric
evaluation from Saint Joe's[, and] . . . a[] [Supplemental
Security Income (SSI)] approval. . . . Now I'm not
gonna get into the medical stuff because obviously my
client is not qualified, but I think it's part of his history
so it is appropriate for me to bring out, you know, some
of this history.
....
I'm not asserting a diminished capacity [defense].
Defense counsel further argued:
A-3502-22
13
The relevance would be to allow the jury to evaluate his
level of sophistication . . . because here we don't have
one charge where it's a matter of in or out. We have a
number of charges for a number of different victims and
a number of different possible outcomes, at least with
regard to the robbery on [January] 31st. And if I am
reading what I anticipate to be my client's testimony
about what happened on that day, I think the jury is
going to benefit from understanding . . . his level of
sophistication, because they're gonna have to make
some decisions about the finer shades of gray about
what happened that day.
The court responded:
[T]hat's just it . . . I don't want them to use it for an
unintended purpose. And you're saying right here
blatantly on the record it's not to go to any sort of
diminished mens rea, it's just to give them a background
as to maybe, you know, his sophistication let's say for
hypothetically when he's waiving his rights. One of the
things they can consider is the totality of the
circumstances and whether his statement was
voluntarily made, not a legal decision that I make is
separate and apart from that, but they're allowed to
consider those factors. And you know, I just don't
know how far you're going. Like I kind of want a
preview of what you intend to elicit because I don't
think it's fair to the State to allow the defendant to say
yeah, well, you know, I was in special ed classes, I don't
know anything about anything, I don't know how to
read, I don't know how to do anything, because now
you'[v]e painted this picture before the ladies and
gentlemen that he is, you know . . . but I don't
necessarily think at this late juncture it's fair to the State
to allow this defendant to testify about his entire history
of not being able to function.
A-3502-22
14
The court ultimately determined that the IEPs would be excluded,
reasoning in pertinent part:
I think saying an IEP, especially when you have people
that may have children that experienced that, their
definition of IEP is different. And without giving them
the IEP to say here's what his challenges are, I don't
think it's relevant, I think it will confuse the jury. I
don't think it goes to any of the elements. I don't think
it's gonna aid the jury in making any sort of factual
decisions that they would need to make in order to
determine this case. And so I would sustain the
objection.
The court also ruled the SSI letter was inadmissible, concluding:
I don't think the fact that he received SSI is relevant to
the facts and circumstances of this case. We don't know
why he received SSI. . . . I don't think that's fair and I
think that's confusing to the jurors, and I think it's really
a play on sympathy at this point.
We agree with the trial court that the documents and related lay testimony
by defendant were not relevant to the substantive charges. Defendant's
intellectual challenges might well have been relevant in the context of a
diminished capacity defense, see N.J.S.A. 2C:4-2. But here, no such defense
was raised, as counsel made abundantly clear to the court. Those documents
and that line of questioning were thus properly excluded. Cf. Medina, 242 N.J.
at 412 ("Under [the] deferential standard, we review a trial court's evidentiary
ruling only for a 'clear error in judgment.").
A-3502-22
15
III.
We turn next to defendant's contention, raised for the first time on appeal,
that the trial court at the suppression hearing failed to weigh important factors
that would have shown that his waiver of Miranda rights was not knowing,
intelligent, or voluntary. Defendant asserts that he has a "lifelong difficulty with
processing and understanding new information." However, defendant did not
present this argument, or the IEPs, to the trial court at the suppression hearing.
We thus address whether the trial court was obliged to reopen sue sponte the
Miranda hearing when, during the course of the trial, it learned about the IEPs.
Our review of a decision on a motion to suppress is limited. State v.
Ahmad, 246 N.J. 592, 609 (2021). "Generally, on appellate review, a trial
court's factual findings in support of granting or denying a motion to suppress
must be upheld when 'those findings are supported by sufficient credible
evidence in the record.'" State v. A.M., 237 N.J. 384, 395 (2019) (quotation
marks omitted) (quoting State v. S.S., 229 N.J. 360, 374 (2017)). We defer to
those factual findings because of the trial court's "opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. Elders, 192 N.J. 224, 243 (2007) (quoting State v. Johnson, 42
N.J. 146, 161 (1964)). Accordingly, we "ordinarily will not disturb the trial
A-3502-22
16
court's factual findings unless they are 'so clearly mistaken "that the interests of
justice demand intervention and correction."'" State v. Goldsmith, 251 N.J. 384,
398 (2022) (quoting State v. Gamble, 218 N.J. 412, 425 (2014)).
Furthermore, and importantly for purposes of this matter, "on appeal we
may only consider whether the motion to suppress was properly decided based
on the evidence presented at that time." State v. Robinson, 200 N.J. 1, 15 (2009)
(quoting State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999) (emphasis
added).
Turning to substantive legal principles, when an arrestee waives their
Miranda rights, an inculpatory statement to police is only admissible if
prosecutors "prove beyond a reasonable doubt that the suspect's waiver was
knowing, intelligent, and voluntary in light of all the circumstances." State v.
Presha, 163 N.J. 304, 313 (2000) (citing State v. Burris, 145 N.J. 509, 534
(1996)). "In considering whether the demanding proof-beyond-a-reasonable-
doubt standard has been met, courts assess the totality of the circumstances
surrounding the interrogation, including 'the defendant's age, education and
intelligence, advice as to constitutional rights, length of [the] detention, whether
the questioning was repeated and prolonged in nature and whether physical
punishment or mental exhaustion was involved.'" State in Interest of M.P., 476
A-3502-22
17
N.J. Super. 242, 262 (App. Div. 2023) (alteration in original) (quoting State v.
Erazo, 254 N.J. 277, 301 (2014)); see also State v. L.H., 239 N.J. 22, 42 (2019)
(noting that "the due process test takes into consideration the totality of all the
surrounding circumstances—both the characteristics of the accused and the
details of the interrogation") (citations omitted) (internal quotation ma rks
omitted). In Presha, the New Jersey Supreme Court emphasized that
[a]t the root of the inquiry is whether a suspect's will
has been overborne by police conduct. In determining
whether a suspect's confession is the product of free
will, courts traditionally assess the totality of
circumstances surrounding the arrest and interrogation,
including such factors as "the suspect's age, education
and intelligence, advice as to constitutional rights,
length of detention, whether the questioning was
repeated and prolonged in nature and whether physical
punishment or mental exhaustion was involved."
[163 N.J. at 313 (quoting State v. Miller, 76 N.J. 392,
402 (1978)).]
Applying these foundational principles to the present case, we have no
quarrel with defendant's contention that evidence of a learning or reading
disability can be relevant in determining whether the State has proved beyond a
reasonable doubt that an arrestee knowingly and voluntarily waived their
Miranda rights. See M.P., 476 N.J. Super. at 301. Defendant's reliance on M.P.,
A-3502-22
18
however, is misplaced, or at least overstated, because the circumstances in that
case are starkly different from the circumstances in the matter before us.
In M.P., the juvenile filed a motion to suppress statements he made during
interrogation and called an expert in adolescent brain development to testify at
the hearing. Id. at 259, 277-78. The trial court denied M.P.'s motion. We
reversed and remanded because the trial court failed to consider the expert's
unrebutted testimony that addressed the juvenile's personal intellectual,
education, and cognitive limitations in the context of whether his waiver was
knowing and voluntary. Id. at 289. We held:
[W]hen determining whether the State has proven the
waiver of rights was knowing, intelligent, and
voluntary beyond a reasonable doubt, M.P.'s
undisputed cognitive limitations and mental conditions
must be accounted for in addition to the circumstances
outwardly displayed in the video. A recording of the
interrogation showing a suspect's willingness to talk to
police—while highly relevant—may not tell the whole
tale because the video may not reveal an interrogee's
underlying deficits that inhibit an adequate
understanding of constitutional rights. The ultimate
fact-sensitive issue, we stress, is whether M.P. actually
knew, understood, and voluntarily waived his rights,
not just whether he appeared to be willing, if not eager,
to speak to police.
[Ibid.]
A-3502-22
19
In sharp contrast, in the matter before us, there was no mention at the
Miranda hearing of defendant's intellectual capacity, learning disability, or
emotional disturbance. Rather, the hearing focused on the conduct of the police
interrogators. Further, defendant expressly declined to present evidence.
We stress that while the "totality of the circumstances" can include factors
relating to an arrestee's intelligence and education, as we emphasized in M.P.,
476 N.J. Super. at 290, the fact remains that a motion court is constrained by the
evidence presented to it and the arguments of the advocates at the suppression
hearing. As noted by Judge Edwin H. Stern in a case involving a motion to
suppress under the Fourth Amendment, State v. Gibson, "[w]e take this
opportunity to remind the parties that on appeal 'we may only consider whether
the motion to suppress was properly decided based on the evidence presented at
that time.'" 318 N.J. Super. at 9 (citations omitted).
We add that defendant cites no authority that holds that a trial court in
these circumstances is obligated to sua sponte reconsider its earlier ruling.
Moreover, there was no motion for reconsideration or to re-open the Miranda
hearing.
Relatedly, the defense has not proffered expert opinion on the significance
of the IEPs. We confirmed at oral argument that, to this day, defense counsel
A-3502-22
20
has not retained an expert to evaluate and opine on defendant's capacity to
understand and waive Miranda rights. The IEP records, standing alone, are by
no means dispositive on that question. Those plans were prepared when
defendant was still in school, three and five years, respectively, before the
stationhouse interrogation. Furthermore, the IEPs were developed to facilitate
defendant's education, not to ascertain his ability to understand Miranda rights
administered orally and in writing by police officers during a custodial
interrogation.
Notably, moreover, counsel acknowledged at oral argument that the
defense has not retained an expert to conduct a Miranda Rights Comprehension
Index evaluation. See M.P. at 284. We decline to treat IEPs as the functional
equivalent of or adequate substitute for an evaluation tool specifically designed
to address whether a person understands their Miranda rights. In these
circumstances, defendant has not shown that even if the IEPs had been
considered at the Miranda hearing as part of the totality of the circumstances,
the outcome would be different. See R. 2:10-2 (permitting an appellate court to
review an issue not raised below only if the trial court's error was "clearly
capable of producing an unjust result.").
A-3502-22
21
In sum, the current record does not support defendant's newly minted
contention that the trial court erred by not sua sponte reopening the Miranda
hearing. We note in the interest of completeness that the State argues that the
contention defendant raises for the first time on appeal should instead be
addressed in a petition for post-conviction relief. We offer no opinion on that
assertion. We hold only that defendant has not established grounds in this appeal
for our intervention with respect to the denial of his motion to suppress his
confession.
IV.
Finally, we address defendant's sentencing contentions. We begin by
acknowledging that "[a]ppellate courts review sentencing determinations in
accordance with a deferential standard." State v. Fuentes, 217 N.J. 57, 70
(2014). The reviewing court must not substitute its judgment for that of the
sentencing court. State v. O'Donnell, 117 N.J. 210, 215 (1989). Accordingly, a
sentence must be affirmed unless:
(1) [T]he sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
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[Fuentes, 217 N.J. at 70 (quoting State v. Roth, 95 N.J.
334, 364-65 (1984)).]
Stated another way, we may modify a defendant's sentence only when convinced
that the sentencing judge was clearly mistaken. State v. Johnson, 118 N.J. 10,
15 (1990); State v. Jabbour, 118 N.J. 1, 6 (1990).
Defendant argues his twenty-seven-year NERA sentence is excessive. He
contends, for example, the trial court was required to give greater weight to the
relevant mitigating factors. Further, defendant asserts that the sentences should
run concurrently because three of the robberies took place within a ninety-
minute span. Defendant also claims that he is "far from a sophisticated criminal"
and "should not be receiving a sentence three times as long as those given to his
co-defendants after they pled out." We are not persuaded by any of these
contentions.
A. Aggravating and Mitigating Factors
The aggravating and mitigating factors a trial court may consider in
imposing a sentence are set forth in N.J.S.A. 2C:44-1(a) and (b). It is well-
established that the consideration of aggravating and mitigating factors must be
part of the deliberative process. State v. Dalziel, 182 N.J. 494, 505 (2005); State
v. Cassady, 198 N.J. 165, 180 (2009). Trial courts must "explain and make a
thorough record of their findings to ensure fairness and facilitate review." State
A-3502-22
23
v. Comer, 249 N.J. 359, 404 (2022). "Proper sentencing thus requires an explicit
and full statement of aggravating and mitigating factors and how they are
weighed and balanced." State v. McFarlane, 224 N.J. 458, 466 (2016) (quoting
State v. Randolph, 210 N.J. 330, 348 (2012)); See also State v. Case, 220 N.J.
49, 66 (2014) ("[C]ritical to the sentencing process and appellate review is the
need for the sentencing court to explain clearly why an aggravating or mitigating
factor presented by the parties was found or rejected and how the factors were
balanced to arrive at the sentence.").
In this case, the trial court found that three aggravating factors app lied.
With respect to aggravating factor three ("[t]he risk that the defendant will
commit another offense;" N.J.S.A. 2C:44-1(a)(3)), the court stated:
Here the [c]ourt finds that there's rational[]
credible evidence to support the imposition of this
factor as the [c]ourt considers the defendant has been
rearrested for a new offense even while incarcerated.
The [c]ourt, as indicated earlier, reviewed the
warrant complaint which alleges that the defendant was
observed by corrections officers reaching out of the
food for himself, throwing cups of suspected urine at
corrections officers.
In addition, the [c]ourt finds credible evidence to
support the imposition of this factor based upon the
defendant's admitted substance abuse issues. In the
presentence report the defendant admitted . . . to the
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frequent use of marijuana and has a history of using
other controlled, dangerous substances.
The [c]ourt also notes that during a statement to
the police in connection with this case he admitted that
he and his co-defendants would smoke marijuana and
then go out and rob people because it was funny how
scared they would get.
In addition . . . defendant stated that . . . had the
police not caught him on January 31st, 2021 they would
have kept doing it.
He also stated that he committed the robberies
because he was bored and didn't feel like his family was
helping him financially.
The defendant admitted that he knew he could try
to get a job but chose to rob people instead.
Furthermore, the [c]ourt considers the defendant
was not in school and has very little to no work history.
Lastly, the [c]ourt considers the defendant's
strong will and stubbornness to accede to anyone who's
trying to help him, be that the doctors, the teachers or
his grandmother.
The [c]ourt places moderate to—strong[] [weight]
on this factor.
With respect to aggravating factor nine ("[t]he need for deterring the
defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9)), the court
found:
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The State requests, and the defendant concedes,
that aggravating factor number nine is applicable.
The [c]ourt finds that there's ample rational,
credible evidence to support the imposition of this
factor. The [c]ourt finds that the need for specific
concerns in this case is abundantly clear and strong.
The [c]ourt apportions this factor substantial
weight.
As indicated at the outset, the defendant was
convicted by a jury of his peers of one count of robbery
first degree involving victim I.O., and three counts of
robbery second degree involving victim A.M., J.C. and
J.P., one count of unlawful possession of a weapon,
second degree and one count of unlawful taking by
means of conveyance fourth degree, one count of
simple assault, disorderly person's offense.
The [c]ourt finds that, "the need for public safety
and deterrence increase proportionally in the degree of
the crimes." State [v.] Carey, 168 [N.J.] 413, 421
[(2001)].
Here there is one first degree crime and two
multiple second degree crimes. The [c]ourt finds that
the defendant needs to understand there are
consequences for his specific actions. He cannot just
take items from others when he's bored and thinks it's
funny.
All of the victims stated how they feared for their
life. One was pistol whipped prior to taking items.
Another had not only his wallet and money taken,
but also his food which the [c]ourt notes the defendant
thought was funny.
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These were hard-working, innocent people who
did not deserve this.
The [c]ourt also notes that at one point during his
voluntary statement to the police the defendant is
laughing when describing one of the robberies as "my
man's scared as hell. He thought we was about to shoot
him."
The need for general deterrence is also clear and
strong. This type of needless street violence cannot
continue and the general public needs to understand
that should they engage in similar behavior they will be
punished accordingly.
With respect to aggravating factor thirteen ("[t]he defendant, while in the
course of committing or attempting to commit the crime, including the
immediate flight therefrom, used or was in possession of a stolen motor vehicle,"
N.J.S.A. 2C:44-1(a)(13)), the court found:
The defendant concedes, and the State submits,
that this factor also applies. The jury found the
defendant guilty beyond a reasonable doubt of Count
28 charging him with unlawful taking [of a] means of
conveyance.
The defendant also admitted during his testimony
to the ladies and gentlemen of the jury that he knew that
the car was stolen.
Also, during his statement to the police he
admitted that he took license plates that he found in his
home and switched the license plates on the car.
A-3502-22
27
The [c]ourt is also mindful that while the State
did not move the car jacking charge the defendant
admitted in his voluntary statement to the police that
the Nissan he was arrested in he stole from the victim
without consent or permission.
As such, the [c]ourt finds that there is no question
there is ample credible, rational evidence to support the
imposition of this factor and apportions it some to
moderate weight.
As to mitigating factors, the court concluded that mitigating factors two
("[t]he defendant did not contemplate that the defendant's conduct would cause
or threaten serious harm"), three ("[t]he defendant acted under a strong
provocation"), eight ("[t]he defendant's conduct was the result of circumstances
unlikely to recur"), twelve ("[t]he willingness of the defendant to cooperate with
law enforcement authorities"), and thirteen ("[t]he conduct of a youthful
defendant was substantially influenced by another person more mature than the
defendant") did not apply. 6 N.J.S.A. 2C:44-1(b) (2), (3), (8), (12), and (13). The
court concluded that mitigating factors six, seven, and fourteen applied.
The court gave mitigating factor six ("[t]he defendant has compensated or
will compensate the victim of the defendant's conduct for the damage or injury
6
Defendant conceded that mitigating factor one ("[t]he defendant's conduct
neither caused nor threatened serious harm," N.J.S.A. 2C:44-1(b)(1)) did not
apply.
A-3502-22
28
that the victim sustained, or will participate in a program of community service;"
N.J.S.A. 2C:44-1(b)(6)) "minimal weight," as defendant and his co-defendants
agreed to pay restitution jointly and severally to the victims and there has been
no evidence that defendant is unable to obtain gainful employment. For
mitigating factor seven ("[t]he defendant has no history of prior delinquency or
criminal activity or has led a law-abiding life for a substantial period of time
before the commission of the present offense," N.J.S.A. 2C:44-1(b)(7)), the
court found:
[T]he defendant does not have a prior criminal history.
This is his first felony conviction.
He also successfully completed a deferred
disposition program that spanned over a year
concluding in 2018.
The [c]ourt is aware that he has pending charges
from an incident that occurred while he was
incarcerated. As such . . . prior to the commission of
the instant offense the defendant did lead a law-abiding
life for a substantial period of time.
Being mindful of the fact that he has allegedly
committed a new offense and was arrested while
incarcerated the [c]ourt will only apportion this factor
some to little weight.
With respect to mitigating factor fourteen ("[t]he defendant was under
[twenty-six] years of age at the time of the commission of the offense," N.J.S.A.
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2C:44-1(b)(14)), the court stated defendant was nineteen years and eleven
months old at the time the crimes were committed, and gave this factor "the most
weight of the mitigating factors."
The court then determined that "in weighing the qualitative weight of the
aggravating factors against the qualitative weight of the mitigating factors the
[c]ourt finds that the qualitative weight of aggravating factors three, nine and
[thirteen] significantly outweigh the qualitative weight of mitigating factors
seven and [fourteen]."
We are satisfied the trial court aptly articulated its reasons for finding the
relevant aggravating factors, and for not finding some of the mitigating factors
argued by the defense. Those findings are supported by credible evidence. So
too, we believe the court's weighing of the aggravating factors as against the
mitigating factors was thoughtful and proper and in no way constitutes an abuse
of the court's wide discretion.
B. Consecutive Sentences
Finally, we address defendant's contention that the trial court erred in
ordering the sentences on some of the counts to run consecutively. Our Supreme
Court in State v. Yarbough provided guidance for determining whether to
impose consecutive sentences, holding:
A-3502-22
30
(1) there can be no free crimes in a system for which
the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;
(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of violence
or threats of violence;
(c) the crimes were committed at different times
or separate places, rather than being committed
so closely in time and place as to indicate a single
period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to
be imposed are numerous;
(4) there should be no double counting of aggravating
factors;
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense; and
(6) there should be an overall outer limit on the
cumulation of consecutive sentences for multiple
offenses not to exceed the sum of the longest terms
A-3502-22
31
(including an extended term, if eligible) that could be
imposed for the two most serious offenses.
[100 N.J. 627, 643-44 (1985), holding modified by
State v. Torres, 246 N.J. 246 (2021).]
The Yarbough guidelines leave "a fair degree of discretion in the
sentencing courts." Carey, 168 N.J. at 427. "[A] sentencing court may impose
consecutive sentences even though a majority of the Yarbough [factors] support
concurrent sentences," id. at 427-28, but "the reasons for imposing either a
consecutive or concurrent sentence should be separately stated in the sentencing
decision," State v. Miller, 205 N.J. 109, 129 (2011) (quoting Yarbough, 100 N.J.
at 643).
The Court more recently elaborated on those guidelines in Torres. 246
N.J. at 246. In Torres, the court asserted "Yarbough's second factor requires a
sentencing court to place on the record its statement of reasons for the decision
to impose consecutive sentences, which . . . we have directed, should focus 'on
the fairness of the overall sentence, and the sentencing court should set forth in
detail its reasons for concluding that a particular sentence is warranted.'" Id. at
267-68 (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
In the matter before us, the trial court issued a thorough oral opinion,
explaining:
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[P]er [Yarbough] . . . a consecutive sentence is
appropriate.
First, the [c]ourt finds there exists ample,
credible evidence that the defendant, either himself, or
as an accomplice to co-defendant Sami and Johnson,
engaged in a spree of robberies that involved four
separate victims based upon the jury's verdict.
[Yarbough] makes clear that there can be no free
crimes in the system for which the punishment shall fit
the crime. The [c]ourt is aware that three of the four
robberies of the victims occurred on the same day, that
is January 29th, 2021.
However, the [c]ourt places weight on the fact
that while the robbery of victim A.M. and J.P. both
occurred on January 29th, 2021[,] these two separate
robberies occurred at different times and different
places.
Thus, the [c]ourt finds that the crimes and their
[objectives] as to each separate victim were
predominantly independent of each other. The [c]ourt
also finds that the crimes involved separate acts of
violence or threats of violence.
[]Moreover, case law permits the imposition of
consecutive sentences where crimes occurred at the
same time and same place.[] That's State [v.] Swint,
[328 N.J. Super. 236, 264 (App. Div. 2000)].
Permitting consecutive sentences where the
crimes were connected by unity of purpose, were
somewhat independent upon one another, and were
committed in a short time frame.
A-3502-22
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[]The [c]ourt further finds the defendant should
not receive the benefit of a "free crime" with the
imposition of a concurrent sentence on this count.[]
That's State [v.] Mejia, [141 N.J. 475, 50[4] (1995)];
[see also] State [v.] Molina, 168 [N.J. 436, 441-43
(2001))].
Continuing with the [Yarbough] analysis, the
[c]ourt notes the defendant was convicted of seven
separate offenses, one of which merges for purposes of
sentencing. Again, the [c]ourt must stress that the
crimes involved four separate criminal episodes. In
imposing consecutive sentences the [c]ourt is not
double counting aggravating factors.
For all of the foregoing reasons the [c]ourt finds
that in qualitatively reviewing the [Yarbough] factors
against the principle of overall proportionality and
fundamental fairness in the aggregate sentence the
[c]ourt is satisfied that imposing the sentence on Count
17 consecutive to . . . Count 6 is appropriate. That's
State [v.] Torres, 246 [N.J. at 246].
The court continued its analysis by considering the Yarbough guidelines
as applied to count twenty-two (the January 31 first-degree robbery), stating:
[P]er [Yarbough] . . . consecutive sentences are
appropriate.
First, the [c]ourt finds that there is ample,
credible evidence that the defendant, either himself or
as an accomplice to his co-defendant, engaged in not
only this first degree robbery, but also three second
degree robberies based upon the jury's verdict.
[Yarbough] makes clear there can be no free
crimes in a system for which punishment shall fit the
A-3502-22
34
crime. As to this particular robbery the credible
evidence shows that it occurred on January 31st, 2021.
Therefore, the [c]ourt finds there is no question that
the robbery of I.O. was predominantly independent of
the robberies of A.M., J.P. and J.C. The [c]ourt also
finds that the crimes involved separate acts of violence
and threats of violence. Moreover, even if a reviewing
court found that this robbery was part of a single
criminal episode case law permits the imposition of
consecutive sentences where crimes occurred at the
same time and place. State [v.] Swint, 328 [N.J. Super.
at] 264.
The [c]ourt further finds the defendant should not
receive the benefit of a free crime with the imposition
of a concurrent sentence as to this count.
Continuing with the [Yarbough] analysis, the
[c]ourt notes the defendant was convicted of seven
separate offenses, one of which we've already learned
was merged for purposes of sentencing. Again, the
[c]ourt must stress that the crimes involved four
separate criminal episodes.
In imposing consecutive sentences the [c]ourt is
not double counting aggravating factors.
Lastly, the [c]ourt considered the age of the
defendant and the real time consequences of the
aggregate sentence and finds that a consecutive
sentence on this count is also warranted.
For all the foregoing reasons the [c]ourt finds that
in qualitatively reviewing the [Yarbough] factors
against the principle of proportionality and
fundamental fairness in the overall aggregate sentence
the [c]ourt is satisfied that an imposition of a
A-3502-22
35
consecutive sentence is warranted. That's . . . Torres
again[.]
Accordingly, Count 22 shall run consecutive to
Count 6 and Count 17, but concurrent to Counts 12, 26
and 28.
We are satisfied the trial court addressed all of the relevant factors and
requirements, including the fundamental fairness of the overall aggregate
sentence stressed in Torres. We see no abuse of discretion. While the aggregate
sentence imposed on defendant is substantial considering his youth and lack of
prior convictions, it does not shock the judicial conscience. See Torres, 246 N.J.
at 272 (citing Roth, 95 N.J. at 364-65). We thus decline to substitute our
judgment for the trial court's. See O'Donnell, 117 N.J. at 215.
To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack sufficient merit to warrant discussion. R.
2:11-3(e)(2). We note that defendant's contention in his self-represented
submission that "[t]he lead detective in the Miranda interrogation was
[investigating] his brother's robbery posing a conflict of interest" is presented to
us in that single sentence. Cf. N.J. Dept. of Env't Prot. v. Alloway Tp., 438 N.J.
Super. 501, 505 n.2 (App. Div. 2015) (citing Fantis Foods v. N. River Ins. Co.,
332 N.J. Super. 250, 266-67 (App. Div. 2000)) (noting that an argument
presented in a single sentence of the party's brief was insufficient); Pressler &
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36
Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2026). Neither party 7
cites to legal authority that holds it is an impermissible conflict of interest for a
law enforcement officer to participate in the investigation of a crime committed
against a relative. We are aware of no such principle. We add that Detective
Sergeant Matos—the brother of the first robbery victim—did not testify at the
Miranda hearing.
Affirmed.
7
We note the State did not respond to defendant's self-represented letter, which
was filed almost two months after the State filed its appeal brief, and more than
a month after defendant's appellate counsel filed a reply-brief.
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37